- “GigSky SIM” or “SIM” means the prepaid roaming SIM offered by GigSky;
- “GigSky Application” or “GigSky App” means the proprietary software application offered by GigSky;
- “GigSky Products” means, collectively, “GigSky SIM”, “GigSky Application”, and any GigSky services or products offered for sale
- “Intellectual Property Rights” means all of the following rights, collectively or individually and irrespective of whether registered or otherwise formalized, that may currently exist or may thereafter arise or be created anywhere in the world: (i) rights associated with works of authorship, including, without limitation, exclusive exploitation rights, copyrights, designs, benefits of moral rights, and mask work rights; (ii) trademarks, service marks, trade dress, logos, trade names, domain names, and corporate names, together with all translations, adaptations, derivations, and combinations thereof and including all goodwill associated therewith; (iii) trade secrets and know-how; (iv) industrial property rights and all rights associated with patents, patent applications, provisional applications, continuations, continuations-in-part, re-examination certificates, utility models, invention registrations, and invention disclosures; (v) other proprietary rights of every kind, including, without limitation, Confidential Information, rights, interests, and authorities existing pursuant to assignments, contracts, licenses, express or implied, and license registrations; and (vi) rights in or relating to applications, filings, registrations, renewals, extensions, derivatives, modifications, enhancements, combinations, divisions, reissues, and the like for any of the rights referred to in (i) through (v) of this definition;
- “Customer” means the person who purchases and/or uses GigSky Products;
- “Participating Member Operator” means each of the operator partners of GigSky in whose networks the GigSky SIM may be used by the Customer;
- “Service(s)” means GigSky data plan(s) and any other service provided and sold to the Customer;
- “Top-Up” of the SIM means the purchase by the Customer of additional data usage of the SIM.
- These Terms govern the sale and use of GigSky Products.
- The SIM and any Top-Up of the SIM once sold cannot be returned to GigSky and the cost of the SIM and any unused usage will not be refunded by GigSky, regardless of whether the card and/or Top-Up plan have been activated. GigSky shall not, in any circumstance, be required to refund any balance remaining in the SIM or in any Top-Up purchased by the Customer.
- The Customer shall be fully responsible for the use of the SIM and under no circumstances shall GigSky be liable for any loss, expenses, or damages incurred or suffered by a Customer resulting from the Customer’s use of the SIM.
- A Customer’s SIM and any Top-Up of the SIM is non-transferable.
- The SIM only allows for data usage as defined by the Global System for Mobile (GSM). All other services, including voice calls, SMS, and MMS cannot be made with the SIM.
- The SIM only works on unlocked devices and GigSky devices, which can use the GigSky Access Point Name (APN). For device configuration, please read FAQ.
- The SIM is not pre-loaded with data and a Service must be purchased in order to activate the SIM.
- GigSky reserves the right to expire the SIM after a period of 365 days from the last successful Top-Up expiry date or the date of activation, whichever is later.
- The SIM may only be sold to persons 18 years old and above.
- Upon activation, the SIM will be valid for 365 days unless Topped-Up, in which case the SIM will be valid until the expiration of the Top-Up period.
- Certain activated data plans of a limited number of destination countries may allow for the remaining data to be used upon entry in the United States provided that the activated data plan has not expired. If your destination country is one of the few that falls under this provision, the “Review Order” will indicate such allowance. The destination countries that fall under this provision are subject to change without notice.
ONLINE PURCHASE OR TOP-UP OF SIM:
- The Customer, by making his first online purchase or Top-Up transaction for a GigSky SIM, consents and authorizes GigSky to automatically debit the credit card used for the first purchase or Top-Up by the Customer for any future purchases or Top-Up of the same SIM.
- The default transaction currency for the SIM shall be US Dollars or its converted local currency equivalent at the point of sale.
- ALL PRODUCTS AND/OR SERVICES PROVIDED BY GIGSKY HEREUNDER ARE PROVIDED “AS IS” AND “WITH ALL FAULTS,” AND GIGSKY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF OPERABILITY, CONDITION, TITLE, NON-INFRINGEMENT, NON-INTERFERENCE, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA, OR QUALITY, AS WELL AS ANY WARRANTIES OF MERCHANTABILITY, SYSTEM INTEGRATION, WORKMANSHIP, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT.
- THE PRODUCTS AND SERVICES PROVIDED BY GIGSKY HEREUNDER ARE NOT FAULT-TOLERANT AND ARE NOT DESIGNED, MANUFACTURED OR INTENDED FOR USE AS ON-LINE CONTROL EQUIPMENT IN HAZARDOUS ENVIRONMENTS REQUIRING FAIL-SAFE PERFORMANCE, SUCH AS IN THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR AIRCRAFT COMMUNICATION SYSTEMS, MASS TRANSIT, DIRECT LIFE SUPPORT MACHINES, OR WEAPON’S SYSTEMS, IN WHICH THE FAILURE OF THE PRODUCTS OR SERVICES COULD LEAD DIRECTLY TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE (“HIGH RISK ACTIVITIES”). ACCORDINGLY, GIGSKY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES. CUSTOMER AGREES THAT GIGSKY SHALL NOT BE LIABLE FOR ANY CLAIMS OR DAMAGES ARISING FROM OR RELATED TO THE USE OF GIGSKY PRODUCTS OR SERVICES IN SUCH APPLICATIONS.
LIMITATIONS OF WARRANTY AND LIABILITY:
- IN NO EVENT SHALL GIGSKY BE LIABLE UNDER ANY LEGAL THEORY: (i) TO CUSTOMER FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES, OR FOR ANY LOST PROFITS, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY, WHETHER TORT, CONTRACT, OR STRICT LIABILITY, (ii) TO CUSTOMER OR ANY THIRD PARTY FOR DAMAGES RELATING TO PERSONAL INJURY CAUSED BY INSTALLATION OR USE OF ANY GIGSKY PRODUCT OR SERVICE, OR (iii) FOR ANY DAMAGES THE CUSTOMER MAY SUFFER FROM OR IN CONNECTION WITH THE USE OR INABILITY TO USE THE GIGSKY SIM OR GIGSKY APP, INCLUDING THE INABILITY TO MAKE EMERGENCY SERVICE CALLS. GIGSKY’S TOTAL AGGREGATE LIABILITY FOR ANY OTHER DAMAGES ASSERTED BY CUSTOMER SHALL BE LIMITED TO CUSTOMER’S ACTUAL DAMAGES CAUSED BY ANY GIGSKY PRODUCT OR SERVICE PURCHASED, LICENSED, OR USED UNDER THIS AGREEMENT, AND SHALL IN NO EVENT EXCEED THE AMOUNTS PAID TO GIGSKY BY CUSTOMER FOR THE THREE MONTHS PRECEDING FOR NON-TOP-UP SERVICE OR THE LAST TOP-UP SERVICE FROM THE DATE OF CLAIM BY CUSTOMER, UNDER THE APPLICABLE SCHEDULE FOR THE SPECIFIC PRODUCT OR SERVICE THAT ARE THE SUBJECT OF CUSTOMER’S CLAIM AGAINST GIGSKY. TO THE EXTENT THAT ANY PRODUCTS, SERVICES, OR FACILITIES PROVIDED HEREUNDER, OR IN RELATION TO THIS AGREEMENT, ARE PROVIDED BY THIRD PARTIES PURSUANT TO AN ARRANGEMENT WITH GIGSKY, THE DISCLAIMERS AND LIMITATIONS OF GIGSKY’S LIABILITY SET FORTH HEREIN, SHALL EXTEND FULLY TO SUCH THIRD PARTIES. THE DISCLAIMERS AND EXCLUSIONS CONTAINED HEREIN ARE INDEPENDENT OF ANY EXCLUSIVE REMEDY AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF SUCH EXCLUSIVE REMEDY.
- THE ABOVE LIMITATION INCLUDES, BUT IS NOT LIMITED TO, DAMAGES RESULTING FROM LOSS OR THEFT OF DATA, TRANSMISSION DELAYS OR FAILURES, SERVICE INTERRUPTIONS, UNAUTHORIZED ACCESS OR DAMAGE TO RECORDS, SOFTWARE PROGRAMS OR OTHER INFORMATION OR PROPERTY; LOSS OF PROFITS; COST OF COVER; OR ANY OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, DIRECT, INDIRECT OR PUNITIVE DAMAGES, HOWEVER CAUSED. THIS LIMITATION WILL APPLY EVEN IF GIGSKY HAS BEEN ADVISED OF, OR IS AWARE OF, THE POSSIBILITIES OF SUCH DAMAGES.
- GIGSKY DOES NOT AND CANNOT CONTROL THE QUALITY OF THE PARTICIPATING MEMBER OPERATOR’S NETWORKS IN WHICH THE SIM MAY BE USED OR INTERCONNECT WITH. THEREFORE, GIGSKY DISCLAIMS ANY AND ALL LIABILITY THAT MAY ARISE FROM THE PERFORMANCE, INCLUDING FAILURE, OF THE PARTICIPATING MEMBER OPERATOR’S NETWORKS.
- WHERE A STATE DOES NOT ALLOW THE DISCLAIMER OR LIMITATION OF DAMAGES RELATING TO PERSONAL INJURY, THE ABOVE DISCLAIMERS AND LIMITATIONS OF LIABILITY SHALL NOT BE CONSTRUED IN THAT STATE AS DISCLAIMING OR LIMITING DAMAGES TO PERSONAL INJURY.
CHANGES IN REGULATION:
Customer and GigSky understand and agree that regulators of the Participating Member Operator’s networks, or other bodies of competent legal jurisdiction, may impose regulations on telecommunication services. If new regulations are imposed upon GigSky, then Customer hereby acknowledges that GigSky is authorized to make changes to this Terms and Agreement that reflect the new regulations, and will post such changes on its corporate website.
RIGHT TO DISCLOSE CUSTOMER INFORMATION:
- GigSky shall not use any information obtained from the Customer (“Customer Registration Form Information”) for any purpose other than the purposes permitted by regulatory bodies or authorities where GigSky Products are sold or used.
- The Customer hereby affirmatively consents to and authorizes GigSky to use and/or disclose any information or data relating to the Customer (including Customer User Account Information) for the purposes of sending commercial messages to the Customer.
- GigSky shall be entitled to terminate Services, GigSky Product(s), or Agreement if:
The Customer abuses GigSky Products by improper usage, including for illegal or immoral purposes;
Any of the information provided by the Customer upon purchasing the GigSky Products is found to be false or unauthorized;
For any reason, the Customer fails to provide his registration information;
GigSky deems it in the best interests of the public to terminate the GigSky Product sold; or
2. Upon termination, GigSky shall have the right to disconnect the Customer’s access to Services and/or GigSky Products.
- GigSky shall be excused from performance of its obligations under these Terms or Agreement if such a failure to perform results from: (i) compliance with any requirement of applicable law, regulation, or judicial order; (ii) any act of God, fire, explosion, flood, strike, embargo, terrorist attack, war, insurrection, or riot; (iii) shortage of, or inability to obtain, appropriate labor, fuel, power, or raw materials; (iv) any failure or malfunction of Customer’s equipment, or of any equipment or services used by or otherwise provided to Customer by a third-party provider; or (v) without limiting the foregoing, any other cause beyond the reasonable control of the excused Party, whether of the class of causes herein before enumerated or not (each of (i) – (v) individually being a “Force Majeure Event”).
- Any delay resulting from a Force Majeure Event shall extend performance accordingly or excuse performance, in whole or in part, as may be reasonable under the circumstances.
FAIR USE POLICY:
- The use of the SIM by a Customer is expected to be a fair data usage.
- Excessive volume or duration of data use, determined at GigSky’s sole discretion, acting reasonably, will constitute abuse of data usage privileges by the Customer.
- GigSky reserves the right to monitor data usage and to withdraw the Services supplied to the Customer at any time in case of overuse or abuse of the Service by the Customer.
- GigSky will not be liable for reimbursement, compensation, or any subsequent loss of any SIM and/or GigSky Product that is suspended, withdrawn, or terminated under this Fair Use Policy.
JURISDICTION AND ARBITRATION:
- The laws of the State of California govern these Terms and the Agreement and Customer agrees to submit to the jurisdiction of the courts of the State of California in the county where GigSky, Inc. is headquartered.
- At GigSky’s sole discretion, any dispute, claim or controversy arising out of or relating to these Terms or Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Palo Alto, CA before three (3) arbitrators. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules or pursuant to JAMS’ Streamlined Arbitration Rules and Procedures.
- Notwithstanding the previous paragraph above, GigSky shall have the right to file any action necessary in any court of competent jurisdiction to seek specific performance, an injunction, or other equitable relief to restrain the other as a remedy for any actual or threatened breach.
- Nothing in these Terms or Agreement or in the Parties’ course of dealing or performance hereunder shall transfer, assign, or grant to, or be claimed to transfer, assign, or grant any right, title, or interest in, or expressly or impliedly license, including by estoppel, statutory operation, or otherwise, other than as expressly granted, any Intellectual Property Rights of GigSky, its Affiliates, or any third party. GigSky and its Affiliates and licensors reserve all rights thereto, except the limited rights expressly granted to Customer hereunder.
- All intellectual property rights in GigSky Products and Services belong to GigSky. The purchase or use of such GigSky Products and Services by Customer does not imply any transfer of intellectual property rights from GigSky to the Customer.
- Customer shall not engage in any act or omission that would impair the Intellectual Property Rights of GigSky or its Affiliates or licensors in any GigSky product or service.
SIM CARD COLLECTION INFORMATION:
Please collect your GigSky SIM card within 30 days from date of purchase. In the event a Customer fails to collect his GigSky SIM card within 30 days from the date of purchase, the Customer agrees that the Customer shall be deemed to have abandoned his GigSky SIM card, and to have waived collection thereof, and the Customer’s payment for the GigSky SIM card shall not be refunded but shall be applied, by way of liquidated damages and not by way of penalty, in respect of GigSky’s administrative and transaction charges.
- GigSky may amend the terms and conditions in these Terms and Agreement from time to time in its discretion, without the need to inform the Customer.
Effective as of 01 April 2017